In its failed bid to convince Parliament to support airstrikes against Syria, the British government issued a statement on Thursday, Aug. 29, outlining its legal justification for military action. In doing so, it claimed that its position is consistent with an emerging international norm of "humanitarian intervention." Indeed such a norm, while not yet codified in international law, has begun to take shape in recent decades, evidenced in both international documents and the practice and rhetoric of governments. Britain's legal position, however, inadequately reflects these international understandings about the "responsibility to protect." Although it's now largely moot, if the British position had been authorized by Parliament, it would have risked dangerously undercutting this emerging and still fragile norm, while simultaneously threatening the U.N. Charter regime. It is thus noteworthy that U.S. Secretary of State John Kerry chose not to mention "humanitarian intervention" in his remarks on Friday, focusing instead on the need to enforce a taboo against chemical weapons. This makes sense, since the military campaign being proposed would not meet the standards by which humanitarian interventions are judged.
The "responsibility to protect" (R2P) doctrine encompasses far more than an imperative toward military intervention, but it does also allow the use of armed force to protect civilians (humanitarian intervention). This new "norm," designed to be used in extreme cases, rests on six principles. Of these, Britain invoked only three, and war planners on both sides of the Atlantic have made a solid case only for two.
The first is "just cause." As the British government stated and many observers have reiterated of late, Syria is in a state of extreme humanitarian distress requiring immediate relief. There is strong evidence in favor of this argument. By any estimate, the civilian death toll at the hands of Bashar al-Assad's regime is staggering, and millions have been displaced. The use of gas against civilians is seen by many to breach an atrocity threshold -- killing hundreds of people (more than 1,400, according to U.S. government evidence). Even without chemical weapons, a strong case could be and has been made for doing something to stop the slaughter. But R2P also says intervention should be a "last resort" -- Britain's second stated principle -- after diplomatic avenues are exhausted. Again, Western powers could make a strong case that this criterion has been met in the case of Syria.
The British government also emphasized that a humanitarian intervention must use means "necessary and proportionate" to humanitarian aims. Here its position is trickier. Of course states are expected to conduct all wars in accordance with the humanitarian principles of necessity, proportionality, and discrimination. They are also expected to observe limits on the means and methods of combat. Would the limited strikes Western powers currently envision meet this standard? It's not at all clear. In fact, the British NGO Article36.org has issued a letter to Prime Minister David Cameron raising concerns over whether use of explosives in densely populated areas could conceivably be understood as a proportional response consistent with humanitarian aims, given their widespread and predictable impact on civilians.
This brings us to the three R2P principles British lawyers are forgetting -- and the reasons, perhaps, that the United States has not invoked R2P in its justification for strikes. One is that a truly humanitarian intervention must have "right intention" -- it must be designed for the express purpose of protecting civilians from predation at the hands of their government. But it is very clear that the military campaign envisioned is not really about protecting civilians from Assad or an ongoing civil war. Instead, as Kerry reiterated today, the goal is to enforce a weapons norm through a punitive strike. While this may well be a laudable goal in itself and may indeed do some good in reinforcing an important global norm, there is no evidence to suggest that it will have an immediate and beneficial humanitarian effect -- indeed much to the contrary.
Enter another important principle: that any intervention undertaken to protect civilians have a "reasonable likelihood of success" and avoid making things worse. Even if a Western strike were the most effective way possible to enforce the chemical weapons taboo -- and this itself is debated -- it is far less clear that such a strike would have a reasonable likelihood of success when it comes to the wider goal of protecting civilians. In fact, much data and analysis suggests the contrary. A recent study has found that intervening on behalf of rebels increases the number of civilians who are killed. While international relations professor Jon Western of Mount Holyoke College rightly points out that it depends on the type of intervention, successful missions have typically included robust mandates, ambitious goals, a willingness to stay the course, and significant resources from the international community subsequent to the invasion. Many involved regime change. In other words, the kind of intervention most likely to actually protect civilians is the polar opposite of the one now being proposed.